VIDHYOTEJAK SAMAJ,RAJKOT vs. ACIT, CPC, TDS, GHAZIABAD

With help of the above chart, the learned Counsel stated that since the direction as provided in the order of the ld. CIT(A), has not been complied by the Assessing Officer, therefore, assessee-trust had no alternative remedy except to file appeal before this Tribunal. This process took a lot of time and therefore, resulted into delay in filing these five appeals by 1672 days (each appeal). The ld.Counsel also stated that time taken by the Assessing Officer for not making available console files may be allowed as reasonable cause and such time period may be ignored due to bona fide reasons. The ld. Counsel further stated that assessee-trust may also be granted the benefit to condone the delay period till 31.05.2022 as part of CIVID -19 pandemic period, as per the direction of Hon’ble Supreme Court. Therefore, effective time period for considering delay will be from the date 01.06.2022, therefore, total effective days of delay is 834 days only. The ld. Counsel finally stated that assessee has explained the sufficient cause for the delay, hence, delay in filing, each appeal may be condoned, and these five appeals may be admitted for hearing on merit.

We have heard both the parties on this preliminary issue. We note that Ld. CIT(A) had directed the Assessing Officer to correct the bona fide error, in TDS mismatch, however, the Assessing Officer did not follow the instruction of Ld. CIT(A) to correct the mis-match in the TDS-statement. Some of the mismatch had been corrected by the Assessing Officer, however, a few mismatch have not been corrected by the Assessing Officer, therefore, the assessee has decided to file this appeal before this Tribunal, and this is the solitary reason for such delay. In these five appeals, the reasons for delay is same and identical. Therefore, we note that the contents in the petition for condonation of delay, in these appeals are same, and these appeals relate to the same assessee. We have gone through the petition for condonation of delay, and the sufficient cause explained by the assessee, in the petition for condonation of delay. The delay had occurred because Ld. CIT(A) has allowed all the appeals for statistical purposes to rectify the mis- match, however, the Assessing Officer rectified only some mis-match and -707/Rjt/2024 Vidhyotejak Samaj some other mis-match has not been rectified, therefore, the assessee has filed these five appeals before this Tribunal with condonation of delay.

We note that total effective days of delay is 834 days only, after excluding the period of COVID-19 pandemic disease. We note that Hon`able Supreme Court in a suo-motu writ petition/ Miscellaneous application no. 21 of 2022 dated 10.01.2022 held that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

The exercise of discretion in condonation of delay in matters of limitation, such as in the present case, has to be carried out within the meaning of "Sufficient Cause" as envisaged in Section 5 of Limitation Act. Hence, the general rule of law of limitation is that an extension shall not be granted under Section 5 if there is no sufficient cause or cogent ground for the condonation of delay, the onus of proving which lies on the appellant, as clearly laid down in the judicial pronouncements by the Highest Courts of Law. Therefore, we are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon’ble -707/Rjt/2024 Vidhyotejak Samaj Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988) SC 897) (7) observed as follows: “4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay……...”

When we weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. We note that the reasons given in the affidavit for condonation of delay, was convincing, and the reason would constitute reasonable and sufficient cause for the delay in filing these appeals. A perusal of the reasons and sufficient cause explained by the ld. Counsel for the assessee, gives us an impression of existence of mitigating circumstances to enable us to exercise our discretion in favour of the assessee. Considering the above facts and circumstances of the cases, as narrated above, we are of the considered opinion that in the interest of justice, the delay deserves to be condoned. Accordingly, we condone the effective delay of 834 days and admit all the appeals of the assessee to adjudicate on merit.

On merit, at the outset, Ld. Counsel for the assessee, submitted that there was data entry error, which has resulted into mismatch in the TDS- statements/payments. In the impugned order u/s 200A(1) of the Act, issued by CPC-AO, the said mismatch has resulted into false demand. The ld. Counsel submitted that the TDS- entry, error relate to quantum of salary, however, the TDS has been deducted correctly on the net taxable salary, but while filling the PAN number in the system, there was an error and this has resulted into mismatch in the TDS-statement/return, which needs rectification. Therefore, assessee-trust filed appeals before the Tribunal to correct rectification in the remaining TDS-mismatch and in order to get the Page | 6 -707/Rjt/2024 Vidhyotejak Samaj mis-match removed. Up to the assessment stage, wherein the Assessing Officer has corrected some of the mis-match and some of the mis-match has not been corrected. The ld. Counsel for the assessee submitted before the Bench, a statement showing mismatch in TDS and prayed the Bench that suitable direction may be given to the Assessing Officer to correct the mismatch in TDS and allow the benefit to the assessee.

The ld. Senior DR for the Revenue debarred from objecting the stand of the ld. Counsel. The ld. Sr-DR for the Revenue did not have any objection if these matters are remitted back to the file of Assessing Officer to examine the reconciliation of the TDS mismatched and then allow relief to assessee in accordance with law.

We have heard both sides in detail and also perused the records of the case including the paper book and reconciliation of TDS mis-match, filed by the assessee-trust. We note that the assessee has made data entry errors while filing TDS returns through NSDL. The assessee has included the TDS paid in earlier quarter also in the subsequent quarters in the TDS statements. This data entry error has resulted in mismatch as the TDS payments of earlier quarters did not actually pertain to the subsequent quarters. In the impugned order u/s 200A(1) of the Act issued by CPC-AO, this mismatch has resulted into demand on account of TDS mismatch. The other data entry error relates to the quantum of salary. It was contended by ld. Counsel that when the TDS has been deducted correctly on the net taxable salary, however, in the TDS return, the gross salary has been punched and therefore in the order of CPC demand on account of short deduction of TDS was computed, which is incorrect. We note that during the appellate proceedings, the ld CIT(A) called a remand report from the Assessing Officer. In the remand report, the ITO-TDS has contended that it is the tax payer who has to rectify the errors Page | 7 -707/Rjt/2024 Vidhyotejak Samaj made by it and file the revised return. He has further contended that as and when the assessee rectifies the errors and as a revised return, the tax liabilities will be reduced/removed automatically. The ld. Counsel has contended that there is no facility in the TDS module which allows correction by the assessee. The ld.Counsel contended that assessee can make the correction, if the Assessing Officer allows the access to assessee to CONSOLE file in the TDS module. The ld. Counsel for the assessee for this purpose, submitted that some of the mismatch has been accepted by the Assessing Officer. However, the following mismatch because of wrong punch of the PAN etc., are to be rectified by the Assessing Officer. The details of which reproduced below: